This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP2714

Cir. Ct. No.2011CV429

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT II

Thomas C. Nolasco and Krishnan Unni,

Plaintiffs-Respondents,

v.

Ameripath Milwaukee, S.C. d/b/a Ameripath Elmbrook,

Defendant-Appellant.

APPEAL
from a judgment of the circuit court for Waukesha County:lee s.
dreyfus, jr., Judge.Affirmedand cause remanded with directions.

Before Brown, C.J., Neubauer, P.J., and Reilly, J.

¶1PER CURIAM. In this employment contract
dispute, AmeriPath Milwaukee, S.C. d/b/a AmeriPath Elmbrook appeals a judgment
entered in favor of pathologists Thomas Nolasco and Krishnan Unni (the
Doctors).We conclude that the
employment agreements are unambiguous and that the awards for damages,
attorneys’ fees and prejudgment interest were proper.We affirm.We also remand for a determination and award of the attorneys’ fees and
costs the Doctors incurred in defending this appeal.

¶2Nolasco had an employment agreement with AmeriPath since
1999.In 2006, Nolasco and AmeriPath
entered into a new agreement and then negotiated an amendment to it effective
January 1, 2007.Soon after, Nolasco
recruited Unni to work with him.

¶3Unni’s and Nolasco’s employment agreements were substantially
similar.Essentially, the agreements
called for net revenue to be totaled, after which expenses, which include
physician compensation, are subtracted, leaving “Pre-Physician Operating
Income.” Twenty-five percent of that sum automatically goes to
AmeriPath.The remaining seventy-five
percent forms the “physician compensation pool” (the Pool).Nolasco’s agreement provides that his portion
of the Pool “shall be determined in the discretion of the pathologists employed
by [AmeriPath], with the approval of the Regional President, based upon
[Nolasco’s] performance to [AmeriPath] during such quarter.”Unni’s provides that his portion “shall be
determined in the discretion of the Managing Director, with the approval of the
Regional President, based upon [Unni’s] annual performance to
[AmeriPath].”The “pathologists” were
Nolasco and Unni; the “Managing Director” was Nolasco.

¶4Sometime in 2008, Nolasco grew concerned that expenses not
enumerated in the agreements were being deducted from the Pool.When alerted, AmeriPath reversed those
deductions.Soon after, the Doctors ceased
being provided AmeriPath’s financial information updates from which they could
estimate the Pool balance.

¶5The Doctors did not receive Pool distributions for several
years.AmeriPath acknowledged that from
2007 through 2011 it had not calculated the Pool according to the contract
formula because that formula “did not include a number of critical and
expensive elements that ordinarily are subtracted from revenue to determine a
pool.”The Doctors filed suit alleging
that AmeriPath’s failure to give them the portion of the Pool for which they
were eligible breached their employment contracts and Wisconsin’s wage claim
statute, Wis. Stat. ch. 109 (2011-12).[1]

¶6Both parties moved for summary judgment.The trial court ruled in favor of the
Doctors, concluding that, when Pool funds existed, they constituted a portion
of the Doctors’ salaries, and AmeriPath had no discretion in whether to
distribute the funds.The court adopted
AmeriPath’s expert’s damages figure and awarded Nolasco $765,396.18 and Unni
$631,593.83 in compensatory damages, attorneys’ fees, costs, and expenses.It also awarded Nolasco $105,423.54 in prejudgment
interest.AmeriPath appeals.

¶8AmeriPath contends that summary judgment was wrongly granted
to the Doctors because it did not breach “the clear and unambiguous language of
the employment agreements.”We agree
that the language is clear and unambiguous.We disagree, however, with AmeriPath’s reading of it.Specifically, we disagree that it gives
AmeriPath the discretion whether to allocate the Pool amounts. Rather, in an
arrangement akin to a partnership, Nolasco’s agreement gives “the pathologists”
the discretion to determine Nolasco’s portion of the pool and Unni’s gives “the
Managing Director”—Nolasco—the discretion to determine Unni’s.The agreements give the Regional President
the power only to approve the allocation based on the individual doctor’s
performance, but not to disallow a distribution altogether.We therefore reject AmeriPath’s persistent
description of the Pool allocations as “bonuses,” and agree with the trial
court that the amounts are additional salary.

¶9AmeriPath next contends that the trial court initially ruled
that the Doctors’ compensation was equal to the total Pool when “‘trued-up’ to
take into account the ‘draws’” paid to them.AmeriPath mistakes what transpired.To the contrary, the court concluded that the Doctors’ salary structure
began with the base salary stated in the agreements—$320,000 for Nolasco,
$330,000 for Unni.Those “draws” on
their compensation already were subtracted from the Pool as part of the
expenses.Net revenues in the Pool, less
AmeriPath’s twenty-five percent, then would be allocated to the Doctors to
complete their salary.To again subtract
the draws in an end-of-year “truing-up,” to use AmeriPath’s term, would result
in impermissible double-counting.

¶10The trial court awarded the Doctors damages based on its
conclusion that the agreements were clear and unambiguous, on AmeriPath’s
concessions that it had used the wrong formulation to calculate the Pool, and
on AmeriPath’s own experts’ calculations that AmeriPath understated the Pool by
more than $900,000.AmeriPath inexplicably
argues that the court’s damages award represents a “puzzling about-face” from
its initial “draws trued-up against total [Pool]” and is based on parol
evidence.To the contrary, it dovetails
perfectly with the court’s liability determinations and flows naturally from,
as we have stated, the unambiguous language of the agreements.It does not depend on parol evidence.

¶11AmeriPath next complains that the trial court erred in awarding
Nolasco “all” of his attorneys’ fees and costs and in awarding any attorney
fees at all to Unni who, it asserts, was not the prevailing party.We reject these baseless contentions.

¶12Nolasco brought his claims under Wis. Stat. ch. 109.The court may allow the prevailing party, in addition to all other
costs, a reasonable sum for expenses.Wis. Stat. § 109.03(6).“Expenses” include attorneys’ fees.Jacobson v. American Tool Cos., Inc.,
222 Wis. 2d 384, 401, 588 N.W.2d 67 (Ct. App. 1998).Nolasco neither requested nor received all of
his attorneys’ fees.Rather, he sought
and was awarded three-fifths of them for the three of the five years that were
the subject of his breach-of-contract and ch. 109 claims.

¶13Unni was awarded attorneys’ fees pursuant to the fee-shifting
provision in his employment agreement.AmeriPath asserts that it owes him no further compensation because it
already paid him over $1 million more than the total Pool and because he was
not the prevailing party.The
fee-shifting provision has no “cap” on compensation and Unni prevailed on
liability and damages.This argument
fails.

¶14AmeriPath also contends the award of prejudgment interest to
Nolasco was improper because there was a genuine dispute as to what, if
anything, was owed.Preverdict interest
is available when damages are fixed and determinable or measurable according to
a reasonably certain standard.Loehrke
v. Wanta Builders, Inc., 151 Wis. 2d 695, 706, 445 N.W.2d 717 (Ct. App.
1989). It should not be required if
there is a genuine dispute as to the amount due.Dahl v. Housing Auth. of the City of Madison,
54 Wis. 2d 22, 31, 194 N.W.2d 618 (1972).Whether to award prejudgment interest is a question of law that we
review independently. Loehrke,
151 Wis. 2d at 706.

¶15We conclude that the prejudgment damage award was proper.While the parties disagreed about the damages
owed, it was not a “genuine dispute”: it was less about determining the amount
due than about whether AmeriPath was liable for it.“Mere difference of opinion as to amount is …
no more a reason to excuse [one] from interest than difference of opinion
whether [the party] legally ought to pay at all, which has never been held an
excuse.”Dahl, 54 Wis. 2d at 30-31
(citation omitted).Also, the damages
were readily ascertainable.AmeriPath’s
expert determined them simply by applying the contractual formula that should
have been used in the first place.

¶16Finally, the Doctors ask that we remand the case to the circuit
court and direct the court to determine and award the attorneys’ fees and costs
incurred in successfully defending this appeal.The parties’ agreement contemplated an award of appellate attorney
fees.The “Attorneys’ Fees and Costs”
paragraph provides:

In any action, suit or proceeding to enforce the terms
and conditions of this Agreement, the prevailing party shall receive and the
unsuccessful party shall pay all costs, fees and expenses, including attorney's
costs, fees and expenses, incurred in enforcing its rights under this Agreement
including costs, expenses and fees with respect to trials, appeals and
collection.

Accordingly, we grant the
Doctors’ request and remand the matter for a determination and award of
appellate attorneys’ fees and costs.

By the Court.—Judgment affirmed and
cause remanded with directions.

This
opinion will not be published.SeeWis.
Stat. Rule 809.23(1)(b)5.

[1] All
references to the Wisconsin Statutes are to the 2011-12 version unless
otherwise noted.